It may be admitted that, if this doctrine were not supported by
an appearance of good sense, it would not have survived. The ship
is the only security available in dealing with foreigners, and
rather than send one's own citizens to search for a remedy abroad
in strange courts, it is easy to seize the vessel and satisfy the
claim at home, leaving the foreign owners to get their indemnity
as they may be able. I dare say some such thought has helped to
keep the practice alive, but I believe the true historic
foundation is elsewhere. The ship no doubt, like a sword would
have been forfeited for causing death, in whosesoever hands it
might have been. So, if the master and mariners of a ship,
furnished with letters of reprisal, committed piracy against a
friend of the king, the owner lost his ship by the admiralty law,
although the crime was committed without his knowledge or assent.
/2/ It seems most likely that the principle by which the ship was
forfeited to the king for causing death, or for piracy, was the
same as that by which it was bound to private sufferers for other
damage, in whose hands soever it might have been when it did the
harm.
If we should say to an uneducated man today, "She did it and she
ought to pay for it," it may be doubted [29] whether he would see
the fallacy, or be ready to explain that the ship was only
property, and that to say, "The ship has to pay for it," /1/ was
simply a dramatic way of saying that somebody's property was to
be sold, and the proceeds applied to pay for a wrong committed by
somebody else.
It would seem that a similar form of words has been enough to
satisfy the minds of great lawyers. The following is a passage
from a judgment by Chief Justice Marshall, which is quoted with
approval by Judge Story in giving the opinion of the Supreme
Court of the United States: "This is not a proceeding against the
owner; it is a proceeding against the vessel for an offence
committed by the vessel; which is not the less an offence, and
does not the less subject her to forfeiture, because it was
committed without the authority and against the will of the
owner. It is true that inanimate matter can commit no offence.
But this body is animated and put in action by the crew, who are
guided by the master. The vessel acts and speaks by the master.
She reports herself by the master. It is, therefore, not
unreasonable that the vessel should be affected by this report."
And again Judge Story quotes from another case: "The thing is
here primarily considered as the offender, or rather the offence
is primarily attached to the thing." /2/
Public-domain text, read in full here on John Shaqi.
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